Citation Nr: 0605082
Decision Date: 02/22/06 Archive Date: 03/01/06
DOCKET NO. 92-54 803 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a total disability evaluation based on
individual unemployability (TDIU) due to service connected
disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARINGS ON APPEAL
Appellant, a friend, and his mother
ATTORNEY FOR THE BOARD
M. C. Graham, Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to January
1971.
The instant appeal arose from an October 1991 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO), in White River Junction, Vermont, which denied a claim
for entitlement to TDIU. The veteran moved during the course
of the appeal and jurisdiction of his claims folders comes to
the Board of Veterans' Appeals (Board) from the RO in St.
Petersburg, Florida. This case was remanded by the Board in
May 1993, December 1994, March 1996, October 1999, and August
2004 for further development and for due process reasons.
In December 2003 a hearing was held before the undersigned
Veterans Law Judge sitting at St. Petersburg, Florida, who is
making this decision and who was designated by the Chairman
to conduct that hearing, pursuant to 38 U.S.C.A. § 7102.
FINDINGS OF FACT
1. The veteran's sole service-connected disability is
migraine headaches, rated as 50 percent disabling.
2. The veteran completed two years of high school and has
work experience as a painter and custodian; he has indicated
that he last worked full-time in 1992.
3. The veteran is unemployable by reason of his service-
connected migraine headache disability.
CONCLUSIONS OF LAW
1. The schedular criteria for entitlement to a total
disability rating based on individual unemployability due to
service-connected disabilities are not met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.16 (2005).
2. An extraschedular award of a total rating for
compensation based on individual unemployability is
warranted. 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that his service-connected migraine
headache disability precludes him from engaging in
substantially gainful employment.
In circumstances where a veteran claims unemployability and
he is less than totally disabled under the schedular
criteria, a total rating may be granted where it is found
that service connected disorder(s) prevent him from securing
and maintaining substantially gainful employment, provided
that: if there is only one such disability, this disability
shall be rated at 60 percent or more, and that, if there are
two or more disabilities, there shall be at least one
disability ratable at 40 percent or more, and sufficient
additional disability to bring the combined rating to 70
percent or more. 38 C.F.R. § 4.16(a) (2005). The veteran's
sole service-connected disability is migraine headaches,
rated as 50 percent disabling. Thus, he fails to meet the
percentage requirements of § 4.16(a).
Since it is the established policy of VA that a total
disability rating be granted when a claimant is unable to
secure or follow a substantially gainful occupation by reason
of service connected disabilities, extra-schedular
consideration is to be afforded when the percentage standards
of 38 C.F.R. § 4.16(a) have not been met. 38 C.F.R. § 4.15
(2005). Total disability will be considered to exist when
there is present any impairment of mind or body that is
sufficient to render it impossible for the average person to
follow a substantially gainful occupation. 38 C.F.R.
§§ 3.340(a), 4.15 (2005). See VAOPGCPREC. 6-96 (1996).
In determining whether a particular claimant is unemployable,
full consideration must be given to unusual physical or
mental effects, peculiar effects of occupational activities,
defects in physical or mental endowment preventing the usual
success in overcoming the handicap or disability, and the
effect of combinations of disability. 38 C.F.R. § 4.15
(2005). VA must consider the effects of the claimant's
service connected disabilities in the context of his
employment and educational background. See Fluharty v.
Derwinski, 2 Vet. App. 409, 412-13 (1992). The central
inquiry is whether the claimant's service connected
disabilities alone are of sufficient severity to produce
unemployment, see Hatlestad v. Derwinski, 5 Vet. App. 524,
529 (1993), and disability stemming from nonservice connected
disability or advancing age may not be considered. Id.,
38 C.F.R. § 4.19 (2005). See also Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993) (the sole question of whether a claimant
is employable depends upon his/her capability of performing
the physical and mental acts required by employment, and not
whether the claimant can find employment).
Where, as in this case, the veteran does not meet the
percentage requirements for a total rating set out in 38
C.F.R. § 4.16(a), the Board lacks the authority to grant a
total rating in the first instance. Bowling v Principi, 15
Vet. App. 1, 10 (2001). In such a case VA must refer the
matter to VA's Compensation and Pension (C&P) Director for
initial consideration under the provisions of 38 C.F.R.
§ 4.16(b). Id. Referral is required where there is a
plausible basis for concluding that the veteran is unable to
secure and follow a gainful occupation. Id. at 9.
Accordingly, the case was referred to VA's C&P Director
pursuant to the Board's August 2004 remand. In May 2005 the
Director of C&P determined that an extraschedular rating was
not warranted.
The veteran completed two years of high school and has worked
as a painter, dock worker, laborer, and custodian. On his
application for individual unemployability completed in May
1991, the veteran reported that he became disabled in 1990.
Later evidence in the claims folders indicates that the
veteran last worked between October 1991 and January 1992 as
a laborer.
A June 1993 VA social and industrial survey examination noted
that the veteran's employment history was "spotty" and that
he had worked many jobs involving physical labor for short
periods which he left because of increased headaches. He
reported that his headaches last for 2-3 days 2-3 times a
week and during those times he must lie in a dark room with
absolute silence. The examiner stated "[i]n view of the
patient's claimed headache and discomfort, which I don't
doubt, it doesn't seem that he is likely to be able to hold a
full time job with any degree of satisfaction." The
examiner found him to be "industrially unemployable."
Records from the veteran's last employer in 1992 stated that
the veteran "[w]as on disability when location where he
worked was sold to National Linen." A statement from his
manager at that job indicated that the veteran was a good
employee but that the manager became concerned for the
veteran's safety because of the severity of the veteran's
headaches. During a March 1994 RO hearing the veteran
reported that he was taking classes trying to get his high
school diploma but that some days his mother had to pick him
up early because of his headaches. A March 1994 statement
from the Vermont Institute for Self-Reliance reported that
the veteran was unable to complete his Adult Educational
Program due to health problems which affected his attendance.
An August 1997 statement from a former employer who hired the
veteran as a painter reported that the veteran was a very
good painter but had to leave jobs for 2-3 days at a time
because of headaches. An April 2001 VA examination report
assessed the veteran's headaches and determined that the
veteran would be "100% disabled from vocational activities
due to the severe nature of his headaches and their
refractory treatment nature."
Records from the Social Security Administration indicate that
the veteran was found disabled in a March 1995 decision.
That decision determined that the veteran became disabled in
January 1992. The SSA decision noted the veteran had the
following severe impairments: severe depression, anxiety,
post traumatic stress disorder, headaches, and unstable
hypertension.
There is evidence of other, non-service-connected
disabilities as referenced by the SSA decision and the
Director of C&P, but the Board may only consider the effect
the veteran's service-connected disability has on his
employability in making a determination. While not all of
the veteran's headaches are due to his service-connected
migraines, there is no competent medical evidence that
separates the service-connected headaches from the
nonservice-connected headaches. The United States Court of
Veterans Appeals (Court) has held that when it is not
possible to separate the effects of the service-connected
condition from a nonservice-connected condition, 38 C.F.R.
§ 3.102 requires that reasonable doubt on any issue be
resolved in the veteran's favor, and that such signs and
symptoms be attributed to the service-connected condition.
See Mittleider v. West, 11 Vet. App. 181, 182 (1998).
In light of the two medical statements of record finding that
the veteran is unable to work due to the frequency and
severity of his migraine headache attacks, the Board finds
that he has been shown to be unable to secure and follow a
substantially gainful occupation by reason of his service-
connected migraine headaches by a preponderance of the
evidence. Therefore, an extraschedular rating of a total
disability rating based on individual unemployability is
warranted. 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2005).
The Board notes that regulations enacted under the Veterans'
Claims Assistance Act of 2000 (VCAA) require VA to notify
claimants and their representatives of any information that
is necessary to substantiate the claim for benefits. See
38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b).
Regulations also dictate that VA has a duty to assist
claimants, essentially providing that VA will make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim. See 38 U.S.C.A. § 5103(A) (2002);
38 C.F.R. § 3.159(c) (2005). As the Board finds that
entitlement to TDIU is warranted in this case, VCAA
compliance is unnecessary.
ORDER
Entitlement to a total disability rating based on individual
unemployability is granted, subject to the regulations
pertinent to the disbursement of monetary funds.
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CONSTANCE B. TOBIAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs